Atlantic Insurance v. Manning

3 Colo. 224 | Colo. | 1877

Elbert, J.

Under the authorities the construction placed by the court below upon the clause of the policy in controversy must be sustained.

In the case of the North American Insurance Company v. Zaenger, 63 Ill. 465, the clause construed is in language, grammatical structure and punctuation, similar to the one under consideration. The rule of construction adopted by the supreme court in the case of Insurance Co. v. Slaughter, 12 Wall. 404, is also clearly applicable in this case. At best the clause in question must be held to be ambiguous, that is to say, a case where the judgment hesitates between two imports, unable to determine which of the two was intended. In such case the rule is well established that where the preparation of an instrument is left to the party to become liable under it, and its meaning is doubtful, by reason of the use of ambiguous or obscure language, other things being equal, the construction is to be adopted which is most favorable to the promisee. Merrick v. Germania Fire Ins. Co., 54 Penn. 277; Hoffman v. Ætna Ins. Co., 32 N. Y. 413, and cases cited.

Under this construction of the clause in controversy the instructions given by the court below correctly pronounced the law upon the evidence, and the instructions asked by the defendant were properly refused.

Overruling the defendants’ motion for nonsuit with leave to the plaintiff to introduce additional evidence was entirely within the discretion of the court, and is not ground for exception.

ISTor was there error in overruling' defendants’ second motion for a nonsuit, as there was sufficient evidence to take the case to the jury.

As the evidence in the case was pertinent alone to the general issue, it is unnecessary to enter into' ány discussion of the several special pleas.

The fourth, sixth and eighth assignments of error are to' testimony improperly admitted, but wholly irrelevant and immaterial, and which could not have prejudiced the defendant; nor can it bé said that the defendant was prejudiced by the testimony of the witness Manning, touching. Ms ownership of the property in question.

Tile recitals of the policy of insurance, before introduced, were prima facie evidence of the plaintiff’s title. Nichols v. Fayette Ins. Co., 1 Allen, 63; Fowler v. U. S. Ins. Co., 23 Barb. 143.

The preliminary proofs were sufficiently identified by the witness Worthington to take them to the jury, and any objection to them, as not in strict compliance with the requirements of the policy, was waived by the letter from the president of the defendant company. It is well settled that objections to preliminary proofs are waived by objections to payment on .other grounds. Post v. Ætna Ins. Co., 43 Barb. 357; Peoria Ins. Co. v. Whitehill, 25 Ill. 466.

It was also competent for plaintiff to show this waiver under the averments in his declaration. An allegation of compliance with a condition is supported by proof that the underwriters waived the condition. 2 Phillips’ Ins., § 2122; Pim v. Reed, 6 Mann. & G. 1.

It is claimed, however, that the letter of the president of the defendant company was improperly admitted in evidence, as there was no sufficient proof of the signature. There was no occasion to prove the handwriting of the president in this case. It was in evidence that the agent, Worthington, had forwarded the preliminary proofs by post, to the defendants, and' had received this letter in reply by due course of mail. This brought the letter within the rule laid down in the case of Overstone v. Wilson, 2 Carr. & Kerw. 1. In that case the plaintiff’s attorney had addressed a letter to the defendant at his residence and sent it by post, to which he received a reply purporting to be from the defendant; and it was held that the letter thus received was admissible in evidence, without proof of the defendant’s handwriting. 1 Grreenleaf's Ev., § 573, a.

The rule is founded on presumptions arising from the ordinary course of business, and by a like rule, based on like considerations, the identity of the correspondent may be inferred. In the case of Casey v. Pitt, Peake’s Add. Cases, 130, Lord Kenyon held that if letters are SQnt, directed to a person on particular business, and an answer is received in due course, a fair inference arises that the answer was sent by the person whose handwriting it purports to be. 2 Phillips’ Ev., p. 503, note 481.

Again, the witness Worthington was, at the date of the letter, and had been prior thereto, the agent of the defendant company, and as such, in correspondence with Cocks, the president, concerning business of the company. One of the recognized methods of acquiring a knowledge of handwriting is by means of written correspondence, and the belief of the witness as to the genuineness of the signature, being founded on his knowledge, derived from this source, his testimony was competent. 2 Phillips’ Ev. 599; Titford v. Knox, 2 Johns. Cases, 210; 8 Pick. 143.

The rental of a building at the time of its destruction may *e given in evidence as bearing upon the question of loss (Cumberland M. P. Co. v. Schell, 29 Penn. 31), bufcthe rental at the time of its erection in this case, two years prior to the fire, we regard as too remote and circumstantial to be of any value for that purpose.

So, too, the evidence offered to show that the defendant company never insured unoccupied property was inadmissible. This was a question of construction on the face of the policy, and parol testimony was properly rejected. 2 Phillips on Insurance, 2119.

We find no substantial error in the record, and the judgment is affirmed with costs.

Affirmed.